Mendes v Director of Public Prosecutions

A defendant has a fundamental right to be present at and participate in a criminal trial. That right is not absolute. The court may exclude a defendant where disruption makes exclusion necessary, but only in sufficiently extreme circumstances and after careful consideration of the consequences. On a case stated appeal, the facts stated by the magistrates constitute the definitive record. The High Court will not entertain arguments based on different facts or factual findings that were not properly challenged through the chosen appellate route.

The appellant had been convicted at Willesden Magistrates’ Court of assault by beating and criminal damage. He appealed by way of case stated, challenging the decision to continue the trial after he had been removed from court and was not brought back from custody because he would not relinquish his walking stick for handcuffing.

The magistrates stated two questions concerning the propriety of raising the issue after trial and whether the trial could properly continue without an order requiring the appellant’s return. The appellant was unrepresented at the appeal and sought an adjournment shortly before the hearing.

1. The application to adjourn was refused. The appellant had known of the hearing for a considerable time, had known for at least two months that his solicitors could not act, and had provided no good justification for the late application.
2. The first question in the case stated did not require an answer. The magistrates had agreed to state a case, so the issue concerning the propriety of the representations did not arise for determination.
3. On a case stated appeal, the case as stated is the definitive record of the proceedings below. The appellant could not rely on facts different from those recorded or challenge factual findings by this form of appeal.
4. A defendant’s entitlement to be present and participate in the trial is fundamental under Article 6 and the common law. Nevertheless, the court retains a discretion to exclude a defendant in appropriate circumstances. The principles were set out in R v Hayward, Jones & Purvis [2001] EWCA Crim 168, approved by the House of Lords in R v Jones [2002] UKHL 5, and analysed in R (on the application of Ezeugo) v Hendon Magistrates’ Court [2010] EWHC 516 (Admin).
5. The district judge had made an unchallengeable finding that no submission was made for the appellant’s return to court. He had also carefully considered the appellant’s disruptive conduct, the walking stick, the risk to custody staff, the evidence that the stick had been used to strike a person, and the possibility of taking evidence from the cells. His conclusion that the circumstances were exceptional and that the trial should continue was open to him.
6. The appeal was dismissed.

• High Court (Administrative Court): appeal by way of case stated dismissed. The court upheld the magistrates’ decision to continue the trial in the appellant’s absence.